This is Harry Fine's personal blog containing his comments on current Ontario legal issues and the current state, complexities and absurdities of landlord and tenant law in Ontario. Harry is a paralegal with over 15 years practicing landlord and tenant, Small Claims and Human Rights law and is a former member of the Landlord and Tenant Board. The comments in this blog do not constitute legal advice.

Wednesday, July 6, 2011

Fire Marshall's Report on 200 Wellesley Won't Solve the Problem

I've been waiting for the Ontario Fire Marshall's report
and recommendations with anticipation.
The fire at 200 Wellesley struck home for me as I have a large number of
social housing landlord clients where the incidence of compulsive hoarding is
higher than the norm.

Despite the report's suggestion that the problem can be
handled through the Ontario Fire Code by the Fire department working with
public health departments, it has been my experience that they generally take a
hands-off approach.

In Ontario, the landlord is expected to be the first line
of defence. After all, they are required
by law to make sure that rental units are fit for habitation and comply with
standards.

But landlords, from the TCHC's to the smallest mom and
pop operation renting out a basement, are also required to accommodate any
tenants engaged in behaviour that violates the law if that behaviour may be
caused by the tenant's inclusion in any one of 14 Human Rights Code protected
groups.

Accommodation efforts must be continued until the
landlord reaches the point of undue hardship, which is the point just shy of
insolvency.

Ontario's system requiring landlords to fulfill their
responsibility and keep their buildings free from hoarding is flawed for at
least three reasons.

First is the controversial Ontario Human Rights
Commission which introduced a Policy guideline on the Code and Rental Housing
in October of 2009. This guideline's
perverse content is closely followed by judges and adjudicators makes it almost
impossible for a landlord to evict those who exhibit hoarding behaviour, even
those retaining competent legal help.
Most hoarders suffer from OCD and are therefore entitled to de facto
protection under the Code. The Landlord
and Tenant Board sets the bar very high
in evicting tenants who may suffer from code related issues.

The second hurdle is the Landlord and Tenant Board and
the Residential Tenancies Act which it
oversees. The Board over-applies the
Code and holds landlords responsible for accommodating a tenant's code-related
behaviour even if they had no knowledge of the behaviour, the Code-related
issue or if the tenant refuses to take
part in the accommodation process.

The time to evict in complex hoarding/Code cases is
upwards of a year. That itself mitigates
against resolving the problem. There is
no threat of quick sanctions to spur the tenant and their community or family
supports into action. It also provides
time for the fire to start or infestation to spread.

The Residential Tenancies Act has a mechanism for tenancy
termination notices. The statutory
framework is so complicated that no small landlords and most experienced
landlords cannot comprehend or comply with the rules. Notices of termination are frequently found
to be defective by the Board resulting in applications being dismissed.

The most common, the N5 termination notice, is served to
a tenant who has interfered with enjoyment or the landlord's lawful
rights. It is a voidable notice. It is remedial. If the tenant corrects the behaviour, the
notice is void. However the 7 day
voiding provision is so complex that only a handful of people can articulate
it. To prove at a hearing that the
tenant did not correct the hoarding behaviour (cured the breach) is a
long-shot, particularly since hoarding behaviour is not like a noise
complaint. Hoarding may be both a breach
of omission and a breach of commission.
Voiding behaviour differs for each type of breach. Don't even ask.

Most landlords don't want eviction, they want the
dangerous conditions removed. Under the Residential Tenancies Act, the tenant
is required to keep the unit in a state of reasonable cleanliness. That's all the landlord wants. The LTB Members have the power, at a hearing,
to order the tenant to remediate the condition within a fixed period of time,
failing which the landlord could file for a quick eviction. Instead the Board routinely dismisses
applications, allowing the problem to continue.

Finally the support tenants receive through LAO funded
community legal clinics makes the unrepresented landlord easy prey. I've been on hoarding cases where dangerous
conditions exist, where all my client wanted was to have the condition resolved,
yet the tenant refuses reasonable fixes and time-frames and their counsel says
to me "If Ms. X would prefer to die in the unit, that should be her
choice". In short the legal system
in the L&T world is too adversarial and not geared to solving problems. No surprise there. The government should examine the mandate of
the clinics in light of this health and safety crisis.

Perhaps the pending class-action lawsuit will help to
shed some light on the plight of the landlord who is given the responsibility
without the tools or authority.